FRANK ELIAS, JR. v. DAVID and JOANN BERRY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5760-02T15760-02T1

FRANK ELIAS, JR.,

Plaintiff-Respondent,

vs.

DAVID and JOANN BERRY,

Defendants-Appellants.

__________________________________

 

Submitted: October 3, 2005 - Decided:

Before Judges Cuff, Parrillo and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Morris County, Docket No. LT-808-03.

David and JoAnne Berry, appellants pro se.

Frank J. Elias, Jr., respondent pro se.

PER CURIAM

In this appeal from a judgment of possession, defendants David and Joann Berry argue that the Special Civil Part lacked jurisdiction to hear plaintiff's complaint for eviction for cause because plaintiff-landlord failed to provide the requisite notices. We dismiss the appeal as moot.

Plaintiff Frank Elias, Jr., is the owner of a three-family house in Budd Lake, Morris County. Plaintiff and defendants entered a written lease for a term of one-year commencing on April 1, 2002, and expiring on March 31, 2003. Defendants agreed to obey all rules and regulations for the leased premises. They also agreed to keep all garbage cans away from the house in the place designated by plaintiff, to respect the comfort and rights of other tenants, to keep no pets on the premises, and to keep their unlicensed motor vehicle at the premises for no longer than thirty days.

In October 2002, plaintiff filed a complaint to evict defendants from the premises. Plaintiff alleged that defendants breached the lease by keeping a dog in the house, situating a washer and dryer on the porch, and keeping the unregistered vehicle beyond the permitted thirty days. Although we have not been provided with any documentation concerning the resolution of this complaint, both parties agree that the matter was resolved by agreement. Defendants agreed to move the washer and dryer into the living area of the house, to remove their dog by November 8, 2002, and to remove the unregistered vehicle from the premises.

Defendants did not remove the dog or the unregistered vehicle; therefore, on January 22, 2003, plaintiff sent defendants a letter advising them that their lease would expire on March 31, 2003, and that the lease would not be renewed. On January 27, 2003, plaintiff sent defendants another letter entitled "Cease and Desist Demand." Plaintiff demanded that defendants remove the dog immediately, remove the unregistered vehicle from the property, and stop interfering with the comfort and rights of the other tenants. Plaintiff advised defendants that repeated loud arguments after midnight disturbed the other tenants. The letter closed with the statement that plaintiff would file a complaint to evict defendants "[i]f I do not see an affirmative response from you by Friday, February 28th."

On April 4, 2003, plaintiff filed a complaint seeking possession of the leased premises. He asserted that defendants failed to leave the house at the expiration of the lease term and that they had violated the conditions of the lease. Defendants contested the jurisdiction of the court due to lack of a notice to quit, argued that they had cured the violations, had been granted permission to keep the dog, and denied that their behavior interfered with the other tenants' right to quiet enjoyment of the leased premises.

The judge found that a notice to quit was required and that plaintiff had not served a notice to quit on defendants. Nevertheless, he held that he had jurisdiction to hear the complaint because the prior proceedings and the January 2003 notice to cease placed defendants on notice that plaintiff would seek to evict them from the leased premises if they did not cure the violations. The judge then found that the testimony of the other tenants of the house was credible and that defendants' repeated, loud and late arguments interfered with the other tenants' right to quiet enjoyment of their homes. A judgment of possession was entered on May 15, 2003; defendants were directed to leave the premises by June 30, 2003. Defendants' applications for a stay and emergent relief were denied and defendants left the premises on or about July 16, 2003.

On appeal, defendants argue that the notice to cease was inadequate, the absence of a notice to quit deprived the trial court of jurisdiction, and that the findings of fact were not based on credible evidence.

Our review of findings of fact made by a trial judge is extremely narrow. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We may disturb factual findings only when we are convinced that "'they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonable credible evidence as to offend the interests of justice.'" Ibid. (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963). Based on our review of the record and the questioned testimony, we discern no basis to disturb the factual findings.

We are also satisfied that the notice to cease apprised defendants with the requisite specificity of the nature of their offending behavior and the action required by them to cure the violations. Unlike the notice in Carteret Properties v. Variety Donuts, Inc., 49 N.J. 116, 124-25 (1967), the January 2003 notice to cease identified the conduct that violated the lease.

A notice to quit, however, was required. Residential tenancies are governed by the Anti-Eviction Act (Act), N.J.S.A. 2A-18-61.1 to -61.12. The Act regulates the creation and termination of residential tenancies and strict compliance with its terms is required. Bayside Condos., Inc. v. Mahoney, 254 N.J. Super. 323, 325 (App. Div. 1992). The Act allows termination of a tenancy for breach of a landlord's rules and regulations. N.J.S.A. 2A:18-61.1d. In order to terminate a tenancy in accordance with this section, "the landlord must give the tenant a notice to cease the violations; . . . the tenant must continue to violate the rules and regulations after receipt of the notice to cease; and . . . the landlord must give the tenant a notice" to quit one month before commencing an action to terminate the tenancy. RWB Newton Assocs. v. Gunn, 224 N.J. Super. 704, 709 (App. Div. 1988). That was not done in this case.

Although the trial judge lacked jurisdiction, the matter is moot. The only remedy for an aggrieved tenant in a summary dispossess action is possession of the premises. Defendants left the premises over two years ago and presumably an innocent third party now resides in the same premises. We will not displace that tenant. Due to our inability to grant any relief to defendants, we dismiss the appeal.

 
Appeal dismissed.

(continued)

(continued)

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A-5760-02T1

October 21, 2005